In The Supreme Court of the United States

Transcription

1 No ================================================================ In The Supreme Court of the United States DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., v. Petitioners, STATE OF FLORIDA, et al., On Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Respondents. BRIEF FOR AMICI CURIAE AMERICAN NURSES ASSOCIATION; AMERICAN ACADEMY OF PEDIATRICS; AMERICAN MEDICAL STUDENT ASSOCIATION; DOCTORS FOR AMERICA; NATIONAL HISPANIC MEDICAL ASSOCIATION; AND THE NATIONAL PHYSICIANS ALLIANCE IN SUPPORT OF PETITIONERS AND REVERSAL ON THE MINIMUM COVERAGE PROVISION IAN MILLHISER CENTER FOR AMERICAN PROGRESS 1333 H St. NW, 10th Floor Washington, DC (202) imillhiser@americanprogress.org Attorney for Amici Curiae ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) OR CALL COLLECT (402)

2 i TABLE OF CONTENTS Page INTERESTS OF AMICI CURIAE... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 4 I. FINANCING HEALTH COSTS IS AN ECO- NOMIC ACTIVITY THAT SUBSTANTIALLY AFFECTS INTERSTATE COMMERCE... 4 A. Uninsured Americans Frequently Delay Care Until Their Conditions Become Much More Difficult And Expensive To Treat... 6 B. The Costs Of Caring For Uninsured Americans Drive Up The Cost Of Medicare And Private Insurance Plans II. ADVERSE SELECTION THE ACTIVITY OF DELAYING THE PURCHASE OF HEALTH INSURANCE UNTIL AFTER A PERSON REQUIRES CARE IS AN ECONOMIC ACTIVITY THAT MAY BE REGULATED BY CONGRESS III. THERE ARE CLEAR DOCTRINAL LIMITS ON CONGRESSIONAL POWER WHICH ENABLE THIS COURT TO UPHOLD THE MINIMUM COVERAGE PROVI- SION WITHOUT RAISING THE SPEC- TER OF A FEDERAL POLICE POWER... 16

3 ii TABLE OF CONTENTS Continued Page A. A Decision Upholding The Minimum Coverage Provision Would Preserve Existing Limits On Congressional Power And Need Not Authorize Hypothetical Laws Requiring Consumers To Purchase Other Products B. Public Health Laws Regulating Individuals Who Are Not Presently Engaged In Commerce Are An Important Element Of Long-Existing Federal Law CONCLUSION... 25

4 iii TABLE OF AUTHORITIES Page CASES Florida v. Dep t of Health and Human Servs., 648 F.3d 1235 (11th Cir. 2011)... 17, 20 Florida v. Dep t of Health and Human Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2010) Gibbons v. Ogden, 22 U.S. (9 Wheat.) (1824)... 3, 20 Gonzales v. Raich, 545 U.S. 1 (2005)... 3, 15, 16, 18 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) Morgan s S.S. Co. v. Louisiana Bd. of Health, 118 U.S. 455 (1886) R.R. Ret. Bd., 295 U.S. 330 (1935) Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003) Seven-Sky v. Holder, No , 2011 U.S. App. Lexis (Nov. 8, 2011)... 16, 17 Thomas More Law Center v. Obama, 651 F.3d 529 (6th Cir. 2011)... 3, 5, 11, 17 United States v. Comstock, 130 S. Ct (2010) United States v. Lopez, 514 U.S. 549 (1995)... 3, 15, 17, 20 United States v. Morrison, 529 U.S. 598 (2000) United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942)... 16

5 iv TABLE OF AUTHORITIES Continued Page STATUTES AND REGULATIONS Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd Patient Protection and Affordable Care Act, Pub L. No , 124 Stat. 119 (2010)... passim Public Health Service Act of 1944, 42 U.S.C C.F.R OTHER AUTHORITIES Adele M. Kirk, Riding the Bull: Experience with Individual Market Reform in Washington, Kentucky and Massachusetts, 25 J. of Health Politics, Pol y and L. 133 (2000)... 14, 19 Alan C. Monheit et al., Community Rating and Sustainable Individual Health Insurance Markets in New Jersey, 23 Health Affairs 167 (2004) Andrew P. Wilper et al., Health Insurance and Mortality in US Adults, 99 Am. J. Pub. Health 2289 (2009)... 4 Ben Furnas & Peter Harbage, Ctr. for Am. Progress, The Cost-shift from the Uninsured 2 (March 24, 2009)... 11, 19 Brief for Respondent, Gonzales v. Raich, 545 U.S. 1 (2005)... 22, 23 Brief for Respondent, United States v. Comstock, 130 S. Ct (2010)... 22

6 v TABLE OF AUTHORITIES Continued Page Brief for the Appellee upon Re-Argument, Wickard v. Filburn, 317 U.S. 111 (1942) Brief of Appellee, United States v. Darby, 312 U.S. 100 (1941) Brief of Petitioner, Northern Securities Co. v. United States, 193 U.S. 197 (1904) Brief of Petitioner, Perez v. United States, 402 U.S. 146 (1971) Brief of Petitioner, South Dakota v. Dole, 483 U.S. 203 (1987) Congressional Budget Office, Effects of Eliminating the Individual Mandate to Obtain Health Insurance 2 (June 16, 2010) David I. Auerbach & Arthur L. Kellermann, A Decade Of Health Care Cost Growth Has Wiped Out Real Income Gains For An Average US Family, 30:9 Health Affairs 1 (2001)... 4, 5 Institute of Medicine, America s Uninsured Crisis: Consequences for Health and Health Care (February 2009)... 6, 7, 9 Institute of Medicine, Care Without Coverage: Too Little, Too Late (2002)... 8, 10 Institute of Medicine, Health Insurance is a Family Matter (2002)... 6 Jay J. Shen and Elmer L. Washington, Disparities in Outcomes Among Patients With Stroke Associated With Insurance Status, 38 Stroke 1010 (2007)... 9

7 vi TABLE OF AUTHORITIES Continued Page Jonathan Gruber, Ctr. for Am. Progress, Health Care Reform is a Three-Legged Stool 1 (Aug. 5, 2010) Kaiser Family Foundation, The Uninsured: A Primer (Oct. 2011)... 4 Kevin T. Stroupe, et al., Chronic Illness and Health Insurance Related-Job Lock, 20 J. Pol y Analysis & Mgmt. 525 (2001)... 4 Maine Bureau of Insurance, White Paper: Maine s Individual Health Insurance Market (January 22, 2001)... 15, 19 Oral Argument Tr. of United States v. Comstock, 130 S. Ct (2010) Peter G. Szilagyi, et al., Improved Asthma Care After Enrollment in the State Children s Health Insurance Program in New York, 117 Pediatrics 486 (2006)... 8 President s Council of Advisors on Science and Technology, Report to the President on U.S. Preparations for 2009 H1N1 Influenza (Aug. 7, 2009) Reply Brief of Petitioner, Sabri v. United States, 541 U.S. 600 (2004) Supplemental Brief of Respondent, Katzenbach v. McClung, 379 U.S. 294 (1964)... 23

8 vii TABLE OF AUTHORITIES Continued Page Thomas R. McLean, International Law, Telemedicine & Health Insurance: China as a Case Study, 32 Am. J. L. and Med. 7, 21 (2006) Vickie Yates Brown, et al., Health Care Reform in Kentucky Setting the Stage for the Twenty- First Century?, 27 N. Ky. L. Rev. 319 (2000)... 14

9 1 INTERESTS OF AMICI CURIAE 1 Amici are diverse health care provider organizations representing millions of doctors, nurses and other health care professionals throughout the country. Amici believe that the Affordable Care Act is a significant achievement for the patients that their members serve because it ensures greater protection against losing or being denied health insurance coverage and it promotes better access to primary care and to wellness and prevention programs. The Act s goal of optimizing health insurance coverage for the greatest number of people permits healthcare professionals to place their attention on the most important thing the patient s well-being and healing rather than on economic considerations. Amici have a significant interest in assisting the Court in understanding that the minimum coverage provision challenged by Respondents is essential to the Affordable Care Act s provisions ensuring that health insurance is both universally available and affordable. Because amici s members work on the front lines of the health care system, they know from 1 Pursuant to Supreme Court Rule 37.6, counsel for amici represents that no counsel for a party authored this brief in whole or in part and that none of the parties or their counsel, nor any other person or entity other than amici, its members or its counsel, made a monetary contribution intended to fund the preparation or submission of this brief. All parties have consented to the filing of amicus briefs and have filed letters reflecting their blanket consent with the Clerk.

10 2 experience that patients who put off needed care due to lack of insurance often end up sicker and require much costlier emergency room care. Moreover, amici s members work throughout the continuum of care and in all settings within the health care industry from direct care to hospital administration. As a result, amici have a uniquely broad and informed perspective on the impact of the Affordable Care Act and the capacity to offer an expert perspective that can guide the court s understanding of the consequences of removing the minimum coverage provision to the health provider, patients, and insurance markets as a whole SUMMARY OF THE ARGUMENT The Patient Protection and Affordable Care Act s, Pub L. No , 124 Stat. 119 (2010) ( ACA ) minimum coverage provision 2 regulates trade in health care services by requiring most Americans to finance their health costs through insurance. It regulates an activity known as adverse selection where consumers delay purchasing health insurance until after they become likely to receive more in benefits than they pay into an insurance plan. And it is an essential 2 The ACA labels its requirement that nearly all Americans either carry insurance or pay a tax penalty, 1501(a)(2)(G), the Requirement to Maintain Minimum Essential Coverage The provision is referred to as the minimum coverage provision throughout this brief.

11 3 element of a broader scheme regulating the national health care and health insurance markets. Each of these three facts is sufficient to render the minimum coverage provision constitutional. As Chief Justice Marshall explained, no sort of trade can be carried on that Congress power over interstate commerce does not extend to except for wholly local matters that concern only one state. Gibbons v. Ogden, 22 U.S. (9 Wheat.) (1824). This power includes the power to regulate trade in health services, a power which is plenary and which acknowledges no limitations, other than are prescribed in the constitution. Id. at Additionally, [n]o one is inactive when deciding how to pay for health care, Thomas More Law Center v. Obama, 651 F.3d 529, 561 (6th Cir. 2011) (Sutton, J., concurring), and this Court s precedents extend the commerce power to all economic activity that substantially affects interstate commerce. Gonzales v. Raich, 545 U.S. 1, 17 (2005). Delaying the purchase of insurance in order to effectively transfer the cost of health care to third parties is an activity that substantially affects interstate commerce, and thus may be regulated by Congress. Finally, even if the minimum coverage provision could not be enacted on its own, this Court should affirm it as an essential part of a larger regulation of economic activity. Id. at 24 (quoting United States v. Lopez, 514 U.S. 549, 561 (1995)). As this brief explains, much of the ACA s broader regulation of the

12 4 health insurance industry simply cannot function effectively absent a minimum coverage provision ARGUMENT I. FINANCING HEALTH COSTS IS AN ECO- NOMIC ACTIVITY THAT SUBSTANTIALLY AFFECTS INTERSTATE COMMERCE Approximately 50 million non-elderly Americans do not have health insurance, Kaiser Family Foundation, The Uninsured: A Primer 1 (Oct. 2011), leaving millions unable to pay for adequate medical care. This is not simply a public health crisis according to one study uninsurance accounted for more than 44,000 deaths in 2005, Andrew P. Wilper et al., Health Insurance and Mortality in US Adults, 99 Am. J. Pub. Health 2289, 2295 (2009) it also is one of the greatest burdens on the American economy. Sixty-two percent of all personal bankruptcies are caused in part by medical expenses. ACA 10106(a). Thousands of workers forgo a new job opportunity or the chance to start a business because they cannot afford to leave a job that provides them with health insurance. Kevin T. Stroupe, et al., Chronic Illness and Health Insurance Related-Job Lock, 20 J. Pol y Analysis & Mgmt. 525, 525 (2001). Between 1999 and 2009, the percentage of GDP devoted to health care climbed from 13.8 percent to 17.6 percent, and per capita health spending grew from $4,600 to just over $8,000. David I. Auerbach &

13 5 Arthur L. Kellermann, A Decade Of Health Care Cost Growth Has Wiped Out Real Income Gains For An Average US Family, 30:9 Health Affairs 1 (2001). This costs the median family that receives health insurance through an employer nearly 90 percent of their income gains during this ten-year period after accounting for taxes and non-health care inflation. Id. at 3. For the uninsured, who are a primary beneficiary of the Affordable Care Act, the picture is even worse. Although virtually everyone participates in the national market for health care regardless of whether or not they finance the cost of this care through insurance, Thomas More Law Center, 651 F.3d at 544, consumers who do finance their care through insurance are more likely to receive swift and inexpensive treatment, while the uninsured are prone to delay care until their condition worsens into something much more severe and costly to treat. Additionally, the uninsured are far more likely to shift the costs of their health care to people with insurance or to federal and state governments. Thus, the economic activity of financing health care purchases through insurance or some other method substantially affects interstate commerce by impacting both the cost of care and who winds up paying for it.

14 6 A. Uninsured Americans Frequently Delay Care Until Their Conditions Become Much More Difficult And Expensive To Treat Many health conditions and illnesses, if caught early and treated with appropriate follow-up care, can be relatively inexpensive to resolve. Many more conditions can be avoided altogether through preventive care. Yet if these conditions or illnesses do not receive prompt and appropriate treatment, they can often require hospitalization or otherwise deteriorate into a serious condition requiring expensive care. See Institute of Medicine, Health Insurance is a Family Matter 106 (2002). The likelihood that a patient will receive adequate preventive care or early treatment is directly related to whether the patient is insured. One study determined that children enrolled in a public health insurance plan were 15 percentage points more likely to receive preventive care than those who were not. Institute of Medicine, America s Uninsured Crisis: Consequences for Health and Health Care 61 (February 2009) ( Uninsured Crisis ). Likewise, multiple studies found that uninsured children are less likely to be up-to-date on their immunizations than insured children, controlling for observed characteristics of the children. Id. Use of dental services also increases between 16 and 40 percentage points among children who are insured. Id. at 62.

15 The data for adult patients is even starker: 7 [C]hronically ill adults who lacked health insurance had five to nine fewer health care visits per year than chronically ill adults who have health insurance. Uninsured adults with chronic illnesses were much more likely than their insured peers to go without any medical visits during the year even when they were diagnosed with serious conditions such as asthma (23.4 of uninsured adults with no visits vs. 6.2 percent of insured adults), COPD (13.2 vs. 4.0 percent), depression (19.3 vs. 5.2 percent), diabetes (11.0 vs. 5.2 percent), heart disease (8.7 vs. 2.9 percent), or hypertension (12.7 vs. 5.3 percent). Similarly, uninsured adults with asthma, cancer, COPD, diabetes, heart disease, or hypertension are at least twice as likely as their insured peers to say that they were unable to receive or had to delay receiving a needed prescription[.] Id. at 65. Likewise, routine preventive care such as mammography, Pap testing, cholesterol testing, and influenza vaccination is far less common among adults who experience frequent periods of uninsurance. Id. While women who are consistently insured have a 76.7 percent chance of receiving mammographies, that chance declines to 34.7 percent for women who experience frequent periods of uninsurance. Id. Uninsured adults are also much less likely to have a continuing relationship with a single provider. Among uninsured adults, 19 percent with

16 8 heart disease, 14 percent with hypertension, and 26 percent with arthritis do not have a regular source of care, compared with 8, 4, and 7 percent, respectively, of their insured counterparts. Institute of Medicine, Care Without Coverage: Too Little, Too Late 29 (2002) ( Care Without Coverage ). This disparity is troubling because patients with chronic conditions often must modify[ ] their behavior, monitor[ ] their condition and participat[e] in treatment regimens in order to keep their condition under control. Id. at 57. Such tasks require patients to develop a complex understanding of their condition and to master tasks that do not come naturally to persons without education or training in the health sciences. Thus, a patient s continuing relationship with a single provider who can answer their questions and monitor their care is a key to high-quality health care for persons with chronic conditions. Id. There is robust data demonstrating that uninsured patients diminished access to care is associated with deterioration of their medical conditions. One study found that near-elderly adults who lost their insurance were subsequently 82 percent more likely than those who kept their private insurance to report a decline in overall health. Uninsurance Among Adults 469. The rate of asthma-related hospital stays for children with asthma in New York dropped from 11.1 percent to 3.4 percent when those children were enrolled in a state insurance program. Peter G. Szilagyi, et al., Improved Asthma Care After Enrollment in the State Children s Health Insurance

17 9 Program in New York, 117 Pediatrics 486, 491 (2006). Uninsured children diagnosed with diabetes are more likely to present with severe and life-threatening diabetic ketoacidosis than insured children with the same condition. Uninsured Crisis at 71. Among stroke patients, [t]he mortality risk of uninsured patients was 24% to 56% higher than that of their privately insured peers for acute hemorrhagic and acute ischemic stroke, respectively. Jay J. Shen and Elmer L. Washington, Disparities in Outcomes Among Patients With Stroke Associated With Insurance Status, 38 Stroke 1010, 1013 (2007). Likewise, 5-year survival rates for uninsured adults were significantly lower than for privately insured adults diagnosed with breast or colorectal cancer two prevalent cancers for which there are not only effective screening tests, but also treatments demonstrated to improve survival. Uninsured Crisis at 78. Indeed, a recent Institute of Medicine report documented dozens of empirical studies linking uninsurance with poor health outcomes and deteriorated medical conditions. See generally Uninsured Crisis. Severe conditions, which have reached that point because of delayed care, are often drastically more expensive to treat than if they had been treated in a timely fashion. Moreover, patients who suffer from severe medical conditions are frequently less able to be productive in the workplace, and may even develop a chronic condition that permanently decreases their ability to earn a living. Had these patients been insured, however, a great deal of these substantial

18 10 effects on interstate commerce would have been avoided. B. The Costs Of Caring For Uninsured Americans Drive Up The Cost Of Medicare And Private Insurance Plans Uninsured patients likelihood to delay care and the subsequent deterioration of health also drive up Medicare costs. A twelve-year study of patients approaching the age of Medicare eligibility found that previously uninsured patients with cardiovascular disease (hypertension, heart disease, or stroke) or diabetes often did not receive widely-available and effective treatments to prevent costly complications if their conditions developed before they qualified for Medicare. As a result, previously uninsured Medicare beneficiaries with these conditions reported 13 percent more doctor visits, 20 percent more hospitalizations, and 51 percent more total medical expenditures than similarly situated patients who were insured prior to qualifying for Medicare. Uninsurance Among Adults at 468. Additionally, because federal law requires virtually all emergency rooms to stabilize patients regardless of their ability to pay, see Emergency Medical Treatment and Labor Act, 42 U.S.C. 1395dd, uninsured patients frequently receive uncompensated care from these emergency rooms. These costs are then transferred to patients with insurance. See Care Without Coverage at 58 (indicating that many uninsured

19 11 patients identify an emergency department as their regular source of care ). The cost of this uncompensated care is then distributed to patients with insurance. Congress found that [t]his cost-shifting increases family premiums by on average over $1,000 a year. ACA 10106(a). Similarly, one study estimated that cost-shifting due to uncompensated care adds, on average, $410 to each individual insurance premium and $1,100 to each family premium. Ben Furnas & Peter Harbage, Ctr. for Am. Progress, The Cost-Shift from the Uninsured 2 (March 24, 2009) ( Cost-Shift ). Faced with $43 billion in uncompensated care, Congress reasonably could require all covered individuals to pay for health care now so that money would be available later to pay for all care as the need arises. Thomas More Law Center, 651 F.3d at 557 (Sutton, J., concurring). This is especially true because this uncompensated care affects nearly every consumer in the health insurance market by driving up the cost of their premiums. Because this costshifting is an activity that substantially affects interstate commerce, laws regulating it such as the minimum coverage provision fit comfortably within Congress authority.

20 II. 12 ADVERSE SELECTION THE ACTIVITY OF DELAYING THE PURCHASE OF HEALTH INSURANCE UNTIL AFTER A PERSON REQUIRES CARE IS AN ECONOMIC AC- TIVITY THAT MAY BE REGULATED BY CONGRESS Adverse selection occurs when an individual wait[s] to purchase health insurance until they need[ ] care, thus enabling them to receive benefits from an insurance plan that they have not previously contributed to. ACA 10106(a). This activity, whereby insurance consumers time the purchase of insurance to coincide with when they most need it, substantially affects interstate commerce by requiring insurers to develop complex countermeasures that drive millions of Americans out of the health insurance market. Insurers typically defend against adverse selection by screening potential customers with disabilities or preexisting conditions, but the ACA specifically forbids this practice When insurers are unable to deploy their normal countermeasures against adverse selection, the result is an insurance death spiral which can eventually collapse an insurance market. See Thomas R. McLean, International Law, Telemedicine & Health Insurance: China as a Case Study, 32 Am. J. L. and Med. 7, 21 (2006) ( [A]dverse selection removes good-risk patients from the market, resulting in the need for insurers to raise their premiums; which triggers another round of adverse selection. ) This death

21 13 spiral is also a substantial effect on interstate commerce caused by people engaging in adverse selection. Thus, the ACA requires most currently healthy Americans to participate in the insurance market to prevent them from strategically avoiding that market until they become ill or injured (a) ( [A minimum coverage provision] is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of preexisting conditions can be sold. ) Because the minimum coverage provision enables an insurance market to continue functioning when insurers cannot screen out high risk consumers, it is necessary to ensure that the ACA s insurance reforms function effectively. The Congressional Budget Office estimates that premiums will increase drastically absent a minimum coverage provision due to the problem of adverse selection: CBO and [the Joint Committee on Taxation] estimate that, relative to current law, the elimination of the mandate would reduce insurance coverage among healthier people to a greater degree than it would reduce coverage among less healthy people. As a result, in the absence of a mandate, those who enroll would be less healthy, on average, than those enrolled with a mandate. This adverse selection would increase premiums for new non-group policies (purchased either in the exchanges or directly from insurers in the

22 14 non-group market) by an estimated 15 to 20 percent relative to current law. Without the mandate, Medicaid enrollees would also have higher expected health spending, on average, than those enrolled under current law. Congressional Budget Office, Effects of Eliminating the Individual Mandate to Obtain Health Insurance 2 (June 16, 2010) ( Effects of Eliminating ) (emphasis added); see also Jonathan Gruber, Ctr. for Am. Progress, Health Care Reform is a Three-Legged Stool 1 (Aug. 5, 2010) (estimating that the average premium for a non-group health insurance plan would increase 27% by 2019 if the ACA goes into effect without a minimum coverage provision). If anything, this CBO estimate greatly underestimates the cost of excising the minimum coverage provision. Many states that required insurers to cover individuals with preexisting conditions but did not enact a minimum coverage provision experienced far more drastic consequences than the premium spikes CBO predicts. Kentucky, Maine, New Hampshire and Washington each lost most or all of their individual market insurers after those states enacted insurance reforms similar to those in the ACA without enacting a minimum coverage provision, and the cost of some New Jersey health plans more than tripled after that state enacted a similar law. See Vickie Yates Brown, et al., Health Care Reform in Kentucky Setting the Stage for the Twenty-First Century?, 27 N. Ky. L. Rev. 319, 330 (2000) ( Health Care Reform in Kentucky ); Adele M. Kirk, Riding the Bull: Experience with

23 15 Individual Market Reform in Washington, Kentucky and Massachusetts, 25 J. of Health Politics, Pol y and L. 133, 140, 152 (2000) ( Riding the Bull ); Maine Bureau of Insurance, White Paper: Maine s Individual Health Insurance Market 5, 8, (January 22, 2001) ( Maine s Individual Health Insurance Market ), Alan C. Monheit et al., Community Rating and Sustainable Individual Health Insurance Markets in New Jersey, 23 Health Affairs 167, (2004). As the experience of these states and the weight of economic evidence demonstrates, the minimum coverage provision is necessary to prevent the ACA s insurance reforms from creating a fatal adverse selection spiral. Thus, even if adverse selection were not itself an economic activity that substantially affects interstate commerce and it is the minimum coverage provision still must be upheld as an essential part of a larger regulation of economic activity. Raich, 545 U.S. at 24 (quoting Lopez, 514 U.S. at 561); see also United States v. Comstock, 130 S. Ct. 1949, 1968 (2010) (Kennedy, J., concurring in the judgment) (explaining that Congress may exercise its necessary and proper power to ensure that another provision of law does not put in motion a particular force... that endangers others ). Congress s Necessary and Proper power is at its apex when, as is the case here, there is an empiricallydemonstrated link between a provision of law regulating interstate commerce and another provision chosen to ensure that the commercial regulation functions effectively. See id. at 1966 (Kennedy, J.,

24 16 concurring in the judgment) ( When the injury is whether a federal law has sufficient links to an enumerated power to be within the scope of federal authority, the analysis depends not on the number of links in the congressional-power chain but on the strength of the chain. ); Raich, 545 U.S. at 36 (Scalia, J., concurring in the judgment) ( where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective. (quoting United States v. Wrightwood Dairy Co., 315 U.S. 110, , 62 S. Ct. 523, 526 (1942))). III. THERE ARE CLEAR DOCTRINAL LIMITS ON CONGRESSIONAL POWER WHICH EN- ABLE THIS COURT TO UPHOLD THE MINIMUM COVERAGE PROVISION WITH- OUT RAISING THE SPECTER OF A FED- ERAL POLICE POWER A. A Decision Upholding The Minimum Coverage Provision Would Preserve Existing Limits On Congressional Power And Need Not Authorize Hypothetical Laws Requiring Consumers To Purchase Other Products Respondents cannot find real support... in either the text of the Constitution or Supreme Court precedent. Seven-Sky v. Holder, No , 2011 U.S. App. Lexis 22566, at *47 (Nov. 8, 2011). Nevertheless, the Eleventh Circuit accepted their invitation to strike down the minimum coverage provision

25 17 because it believed that any decision upholding this law would lack[ ] cognizable limits. Florida v. Dep t of Health and Human Servs., 648 F.3d 1235, 1313 (11th Cir. 2011). This decision is incorrect. Nothing in the two court of appeals decisions upholding the minimum coverage provision disturbs existing doctrinal limits on laws focused merely on non-economic concerns or on those focused on wholly intrastate matters. See Seven-Sky, 2011 U.S. App. Lexis 22566, at *49 ( [T]he distinctions that separate national and local spheres have been understood as those between intrastate and interstate commerce, and between traditional, non-economic areas of state concern and those involving commerce. (citing United States v. Morrison, 529 U.S. 598, (2000)); Thomas More Law Center, 651 F.3d at 558 (Sutton, J., concurring) ( As Lopez and Morrison suggest, a majority of the Court still appears to accept the line between regulating economic and non-economic conduct, which is why a general murder or assault statute would exceed congressional power. Measured by these conventional commerce clause benchmarks, the minimum-essential-coverage provision passes. ) A short list of wholly non-economic laws that are unconstitutional under either of the lower court decisions upholding the minimum coverage provision includes nationwide bans on murder, rape or assault, federal laws regulating sexual morality, and many federal laws governing the family.